Executive Retention Protection Agreement - Delta Air Lines Inc.
(Form of Agreement for Chief Operating Officer and Executive Vice Presidents)
EXECUTIVE RETENTION PROTECTION AGREEMENT
EXECUTIVE RETENTION PROTECTION AGREEMENT ("Agreement") dated as of August
1, 1997 (the "Effective Date") by and between Delta Air Lines, Inc., a Delaware
corporation (the "Company"), and [NAME] ("Executive").
WHEREAS, Executive is presently employed by the Company in a key management
capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders that
appropriate steps be taken to reinforce and encourage the continued attention of
key management personnel, including Executive, to their assigned duties without
the distraction that may arise from personal uncertainties associated with any
pending or threatened change in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests of
the Company and its stockholders to encourage Executive's continued availability
to the Company in the event of a change in control.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 1998 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 after the Effective
Date, the term of this Agreement shall automatically be extended by one year
(each such additional one-year period following the Initial Term a "Successive
Period") unless, at least sixty days prior to such December 31, (i) either party
has provided the other with written notice of such party's intent that the term
of this Agreement not be so extended or (ii) there occurs a termination of
Executive's employment with the Company.
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SECTION 1.03. Automatic Extension Upon Change in Control. In the event
that a Change in Control occurs during the Initial Term or any Successive
Period, upon the effective date of such Change in Control the term of this
Agreement shall automatically be extended for a period of 36 months from the
effective date of such Change in Control. The 36-month extension described in
this Section 1.03 shall take effect regardless of whether, before or after the
effective date of a Change in Control, Executive or the Company has given
written notice of intent not to extend the term of the Agreement pursuant to
Section 1.02 or there has occurred a termination of Executive's employment,
provided the term of the Agreement has not yet expired as of such effective
date.
ARTICLE 2
OBLIGATIONS OF COMPANY ON CHANGE IN CONTROL
SECTION 2.01. Deferred Compensation. (a) In the event that a Change in
Control occurs during the term of this Agreement, the Company shall promptly
thereafter cause to be irrevocably deposited in trust for the benefit of
Executive and his or her beneficiaries, on the terms set forth in Section
2.01(c), an amount equal to the balance as of the date of such deposit of
Executive's accounts under the Deferred Compensation Plan. (Such trust is
hereinafter referred to as the "Deferred Compensation Trust.") From and after
the date of such Change in Control, the Company shall cause to be irrevocably
deposited in the Deferred Compensation Trust any additional amounts that may be
deferred from time to time by Executive under the Deferred Compensation Plan.
Each such subsequent deposit shall be made on the date the applicable deferred
amount would otherwise have been received by Executive, but for Executive's
election to defer such receipt under the Deferred Compensation Plan.
(b) The trustee of the Deferred Compensation Trust shall be a bank that is
organized under the laws of the United States of America, has assets exceeding
$500,000,000, and may validly exercise trustee powers under Georgia state law.
All trustee's fees and other expenses of administering the Deferred Compensation
Trust shall be borne by the Company.
(c) The instrument governing the Deferred Compensation Trust (the "Trust
Instrument") shall, to the extent reasonably necessary to assure that the
Deferred Compensation Plan will continue to be treated as "unfunded" for
purposes of ERISA and the Code, provide that upon insolvency of the Company the
assets of the Trust will be subject to the claims of the Company's general
creditors. The Trust Instrument shall provide that in all other respects the
assets of the Deferred Compensation Trust will be maintained for the exclusive
benefit of Executive and his or her beneficiaries, and will otherwise be subject
to all fiduciary and other requirements of applicable state trust law. The
Trust Instrument shall require that
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the trustee invest the assets of the Trust in a manner calculated to match as
closely as the trustee deems reasonably possible the investment elections made
from time to time by Executive under the Deferred Compensation Plan, and shall
provide for payment of benefits in accordance with the terms of Executive's
applicable payment elections as in effect from time to time under the Deferred
Compensation Plan.
(d) After the date of a Change in Control, the Company shall not (other
than pursuant to Section 3.03(i) hereof) take any steps to disturb or alter
Executive's (or Executive's beneficiaries') rights to receive amounts deferred
under the Deferred Compensation Plan in accordance with such Executive's
applicable payment elections as in effect from time to time. Nothing herein or
in the Trust Instrument shall relieve the Company of its obligation to pay
benefits under the Deferred Compensation Plan in accordance with the terms of
such Plan, to the extent such benefits are not paid from the Deferred
Compensation Trust.
SECTION 2.02. Payment of Performance-Based Awards. In the event that a
Change in Control occurs during the term of this Agreement and while Executive
is employed by the Company, the Company shall promptly thereafter pay Executive
the sum of (i) the Reference Incentive Compensation Award, prorated to reflect
the portion of the fiscal year elapsed through the date of the Change in
Control, and (ii) the Reference Long-Term Award, for each performance period
that includes the date of the Change in Control under any long-term incentive
plan maintained by the Company, prorated to reflect the portion of such
performance period elapsed through the date of the Change in Control. The
amounts referred to in clauses (i) and (ii) above shall be paid in the form of
cash or shares of Company stock, in accordance with the terms of the applicable
award agreements. The payment under this Section 2.02 shall discharge all
liabilities of the Company to Executive under the Company's annual and long-term
incentive plans and programs, and under this Agreement, with respect to
performance-based incentive compensation (other than stock options and stock
appreciation rights) for the periods referred to in clauses (i) and (ii) above.
SECTION 2.03. Stock Options, Stock Appreciation Rights and
Non-Performance-Based Award. In the event that a Change in Control occurs
during the term of this Agreement and while Executive is employed by the
Company, all outstanding stock options, stock appreciation rights, restricted
stock (if not performance-based), or other non-performance-based awards held by
Executive pursuant to the provisions of the Company's 1989 Stock Incentive Plan
or any successor plan shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control.
SECTION 2.04. Gross-Up Payment. In the event that a Change in Control
occurs during the term of this Agreement, if any payment or acceleration of
vesting
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or exercisability under this Article 2 would result in the imposition of excise
tax under Section 4999 of the Code, or of any interest or penalties with respect
to such excise tax, then Executive shall be entitled to a Gross-Up Payment with
respect to such excise tax, interest or penalties. Such Gross-Up Payment shall
be determined in the manner set forth in Article 4 (excluding Paragraph A and
the last sentence of Paragraph B of Section 4.01), substituting the term "Change
in Control" for the term "Qualifying Event" in Section 4.02. In addition, such
Gross-Up Payment shall be subject to the provisions of Section 4.03 in the same
manner as if such Gross-Up Payment had been paid under Article 4. The Company
shall pay Executive the Gross-Up Payment described in this Section 2.04 as soon
as practicable following the Change in Control, but in no event later than 30
days from such Change in Control.
ARTICLE 3
SEVERANCE BENEFITS
SECTION 3.01. Right to Severance Benefits. In the event that a Qualifying
Event occurs during the term of this Agreement, Executive shall be entitled to
receive from the Company Severance Benefits as described in Section 3.03 and the
Gross-Up Payment described in Section 4.01. The Severance Benefits described in
Sections 3.03(a), 3.03(b), 3.03(c), 3.03(d), 3.03(e), 3.03(f), 3.03(h) and
3.03(i), as well as the Gross-Up Payment, shall be paid or provided to Executive
as soon as practicable following the Qualifying Event, but in no event later
than 30 days from such Qualifying Event.
SECTION 3.02. Qualifying Event. A "Qualifying Event" means any of the
following events:
(a) The involuntary termination of Executive's employment by the Company
during the 36-month period following a Change in Control, other than (i) for
Cause, or (ii) by reason of Executive's death or Disability;
(b) Executive's voluntary termination of employment for Good Reason during
the 36-month period following a Change in Control; or
(c) The occurrence of a Change in Control within one year after (i) the
involuntary termination of Executive's employment by the Company other than (A)
for Cause, or (B) by reason of Executive's death or Disability; or (ii)
Executive's voluntary termination of employment for Good Reason; if, in the case
of either clause (i) or (ii), the involuntary termination or actions giving rise
to the existence of Good Reason, as the case may be, were undertaken by the
Company in anticipation of a Change in Control.
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SECTION 3.03. Severance Benefits. Executive shall be entitled to the
following benefits (the "Severance Benefits") under the circumstances described
in Section 3.01:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed business expenses. In addition, Executive shall be entitled to any
other benefits earned or accrued by Executive for the period through and
including the date of termination of Executive's employment under any other
employee benefit plans and arrangements maintained by the Company, in accordance
with the terms of such plans and arrangements, except as modified herein.
(b) In the case of a Qualifying Event described in Section 3.02(c), the
Company shall pay Executive the amount that would have been payable to Executive
under Section 2.02, had the Change in Control occurred as of the date of
termination of Executive's employment. The payment under this Section 3.03(b)
shall be reduced by any payments previously made to Executive under the
Company's annual and long-term incentive plans and programs, and under this
Agreement, with respect to performance-based incentive compensation (other than
stock options and stock appreciation rights) for the periods referred to in
clauses (i) and (ii) of Section 2.02.
(c) The Company shall pay Executive a lump sum, in cash, equal to three
times the sum of Executive's Reference Salary and Reference Incentive
Compensation Award.
(d) The Company shall pay Executive a lump sum, in cash, equal to the
actuarial present value of the difference between the retirement benefits
described in clauses (i) and (ii) below:
(i) The retirement benefits described in this clause shall be the
total benefits that would be payable to Executive and his or her spouse
under the Qualified Pension Plan and the Nonqualified Pension Plans in
the form of a monthly annuity commencing as of Executive's Earliest
Retirement Date, calculated in accordance with the terms of such plans
as in effect on the date of termination of Executive's employment (or,
if greater, as in effect immediately prior to the Change in Control),
and assuming:
(A) Executive is fully vested in his or her benefits under
such plans;
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(B) The number of years of Executive's credited service for
purposes of benefit accrual under such plans is equal to three
plus the number of such years of service credited under such
plans without regard to this Section 3.03(d)(i)(B);
(C) Executive's age as of the Earliest Retirement Date is
equal to Executive's actual age as of such date plus three years,
for purposes of calculating any reduction under such plans for
early commencement of benefits; and
(D) As of Executive's annuity starting date, Executive has a
spouse who meets the requirements set forth in the Qualified
Pension Plan for entitlement to automatic joint and survivor
annuity benefits.
(ii) The retirement benefits described in this clause shall be the
benefits that would be payable to Executive and his or her spouse under
the Qualified Pension Plan in the form of a monthly annuity commencing as
of Executive's Earliest Retirement Date, calculated in accordance with
the terms of such Plan, assuming that as of Executive's annuity starting
date Executive has a spouse who meets the requirements set forth in the
Qualified Pension Plan for entitlement to automatic joint and survivor
annuity benefits.
For purposes of this Section 3.03(d), "actuarial present value" shall be
calculated using the assumptions in effect, immediately prior to the Change in
Control, for purposes of calculating actuarial equivalence under the Qualified
Pension Plan. The payment under this Section 3.03(d) shall be reduced, in the
case of a Qualifying Event described in Section 3.02(c), by the total amount of
payments (if any) made to Executive and his or her spouse under the Nonqualified
Pension Plans between the date of termination of Executive's employment and the
date of payment under this Section 3.03(d). The payment under this Section
3.03(d) shall discharge all liabilities of the Company with respect to
retirement benefits of Executive under the Nonqualified Pension Plans.
(e) (i) If Executive has attained age 52 as of the date of termination of
his or her employment, Executive shall be entitled to retiree medical and
monthly survivor benefits from the Company commencing as of the date of
the Qualifying Event. Such benefits shall be provided at a level of
coverage no less generous, and at the same cost to Executive, as the
retiree medical and monthly survivor benefits for which Executive would
have been eligible upon retirement under the retiree benefits program
maintained by the Company as in effect immediately prior to the Change in
Control, provided, that if Executive has earned at least ten years of
Continuous Service under the Qualified Pension Plan as of the date of
termination of
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employment (taking into account the assumption set forth in Section
3.03(d)(i)(B)), the Company shall pay Executive a lump sum, in cash,
equal to the present value (as of the date of the Qualifying Event) of
any premium imposed solely because of early retirement. The assumption
set forth in Section 3.03(d)(i)(B) shall be taken into account in
determining the level of any service-related premium to which Executive
becomes subject at any time with respect to retiree medical benefits
provided by the Company.
(ii) If, after taking into account the assumption set forth in
Section 3.03(d)(i)(C), Executive has attained age 52 as of the date of
termination of his or her employment, the Company shall, at its election,
provide to Executive either: (A) retiree medical and monthly survivor
benefits described in (i) above; or (B) a lump sum, in cash, equal to the
present value (as of the date of the Qualifying Event) of the retiree
medical and monthly survivor benefits described in (i) above.
(iii) If, after taking into account the assumption set forth in
Section 3.03(d)(i)(C), Executive has not attained age 52 as of the date
of termination of his or her employment, the Company shall pay Executive
a lump sum, in cash, equal to the present value (as of the date of the
Qualifying Event) of medical, disability and monthly survivor coverage
(as provided to active nonpilot personnel) of Executive and Executive's
eligible dependents under the Medical Plans and Disability Plan for 36
months from the date of the Qualifying Event.
(iv) In determining present value under clauses (i), (ii) and (iii)
above, all terms applicable to Executive under the Medical Plans and
Disability Plan immediately prior to the date of the Change in Control
(including the level of premiums payable by Executive) shall be taken
into account. The amount of such present value shall be determined by
Northern Trust Retirement Consulting Inc. (the "Actuarial Firm") on the
basis of such assumptions as the Actuarial Firm determines to be
reasonable. In the event that the Actuarial Firm is serving as actuary
for the Person effecting the Change in Control or is otherwise
unavailable, Executive may appoint another nationally recognized
actuarial firm to make the determinations required hereunder (which
actuarial firm shall then be referred to as the Actuarial Firm
hereunder). The Actuarial Firm shall provide its determination and
detailed supporting calculations both to the Company and Executive within
fifteen business days of the receipt of notice from Executive that there
has been a Qualifying Event, or such earlier time as is requested by the
Company. All fees and expenses of the Actuarial Firm shall be borne
solely by the Company.
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(f) The Company shall provide Executive with a fully paid-up term life
insurance policy (with premiums pre-paid for the remainder of Executive's life)
on Executive's life, providing Executive's beneficiaries with a death benefit of
$50,000. In addition, if Executive is eligible for early or normal retirement
benefits under the Qualified Pension Plan as of the date of termination of
Executive's employment, the Company shall provide Executive a fully paid-up term
life insurance policy (with premiums pre-paid for the remainder of Executive's
life) on Executive's life, providing Executive's beneficiaries with a death
benefit of two times Executive's Reference Salary. For purposes of determining
Executive's entitlement to the life insurance policy described in the preceding
sentence, the assumptions set forth in Sections 3.03(d)(i)(B) and 3.03(d)(i)(C)
shall be taken into account.
(g) Executive and Executive's spouse, for the remainder of their respective
lives, and Executive's dependent children, for so long as they are under age 18
(or under age 23 if a full-time student), shall be entitled to free system-wide
flight privileges on Company flights to any location which the Company serves.
Such privileges shall entitle Executive, Executive's spouse and Executive's
dependent children to unlimited positive space (or space available, at
Executive's option) first-class tickets, but Executive's dependent children
shall not be entitled to first-class privileges if under age 8; provided further
that all of such flight privileges shall otherwise be subject to the same
conditions and restrictions as pertain from time to time to the flight
privileges generally provided by the Company to its retirees. Nothing herein
shall be deemed as a limitation upon any retiree flight privileges for which
Executive may otherwise qualify.
(h) In the case of a Qualifying Event described in Section 3.02(c), all
outstanding stock options, stock appreciation rights, restricted stock (if not
performance-based), or other non-performance-based awards held by Executive
pursuant to the provisions of the Company's 1989 Stock Incentive Plan or any
successor plan shall become immediately vested, nonforfeitable and exercisable
as of the date of the Change in Control. In addition, in the case of such a
Qualifying Event, the Company shall, with respect to any such stock option,
stock appreciation right, restricted stock or other nonperformance-based award
forfeited by Executive on or after the date of termination of Executive's
employment (except where such forfeiture occurs solely by reason of expiration
of the term of such award), pay to Executive a lump sum, in cash, equal to the
fair market value such award would have had as of the date of the Change in
Control, taking into account the exercise price, if any, associated with such
award and treating such award as fully vested and exercisable.
(i) The Company shall pay (or cause the Deferred Compensation Trust to pay)
to Executive a lump sum, in cash, equal to the balance of Executive's accounts
under the Deferred Compensation Plan.
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(j) The Company shall indemnify Executive (and Executive's legal
representatives or other successors) to the fullest extent permitted by the
Certificate of Incorporation and By-Laws of the Company, as in effect at such
time or on the Effective Date, or by the terms of any indemnification agreement
between the Company and Executive, whichever affords or afforded greater
protection to Executive, and Executive shall be entitled to the protection of
any insurance policies the Company may elect to maintain generally for the
benefit of its directors and officers (and to the extent the Company maintains
such an insurance policy or policies, Executive shall be covered by such policy
or policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company officer or director), against all costs,
charges and expenses whatsoever incurred or sustained by Executive or
Executive's legal representatives at the time such costs, charges and expenses
are incurred or sustained, in connection with any action, suit or proceeding to
which Executive (or Executive's legal representatives or other successors) may
be made a party by reason of Executive's being or having been a director,
officer or employee of the Company, or any Subsidiary or Executive's serving or
having served any other enterprise as a director, officer, employee or fiduciary
at the request of the Company.
ARTICLE 4
CERTAIN TAX PAYMENTS
SECTION 4.01. Gross-Up Payment. The Company shall pay to Executive an
additional lump sum payment (the "Gross-Up Payment"), in cash, equal to the sum
of the amounts described in Paragraphs A and B (if any), below:
A. Executive shall be entitled under this paragraph to the sum of
(i) the present value of all of Executive's applicable Federal, state
and local taxes arising due to payments or coverage provided under
Section 3.03(e), and (ii) an additional amount such that after payment
by Executive of all of Executive's applicable Federal, state and local
taxes on such additional amount, Executive will retain an amount equal
to the total of Executive's applicable Federal, state and local taxes
arising due to the payment required pursuant to clause (i) above. For
purposes of clause (i) above, present value shall be determined using
the appropriate "applicable federal rate" promulgated by the Treasury
Department under Code Section 1274(d) for the month in which the
Gross-Up Payment is made, assuming that all taxes will be paid on the
due date therefor (without regard to extensions).
B. If any portion of the Severance Benefits or any other payment
under this Agreement, or under any other agreement with, or plan of the
Company, including but not limited to stock options and other long-term
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incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Executive shall be entitled under this
paragraph to an additional amount such that after payment by Executive of
all of Executive's applicable Federal, state and local taxes, including
any Excise Tax, imposed upon such additional amount, Executive will
retain an amount equal to the Excise Tax imposed on the Total Payments.
The amount determined under this Paragraph B upon the occurrence of a
Qualifying Event shall be reduced by the amount of any Gross-Up Payment
previously paid to Executive under Section 2.04.
For purposes of Paragraphs A and B above, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 4.02. Determinations. All determinations required to be made
under this Article 4, including the amount of the Gross-Up Payment, whether a
payment is required under Paragraph B of Section 4.01, and the assumptions to be
used in determining the Gross-Up Payment, shall be made by Arthur Andersen LLP
(the "Accounting Firm") which shall provide detailed supporting calculations
both to the Company and Executive within twenty business days of the receipt of
notice from Executive that there has been a Qualifying Event, or such earlier
time as is requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the Person effecting the Change in Control
or is otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 4.03. Subsequent Redetermination. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 4.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
taken into account and paid under this Article 4, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required
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to make to Executive pursuant to the preceding sentence (a "Later Payment"), the
Company shall also pay to Executive an additional amount such that after payment
by Executive of all of Executive's applicable Federal, state and local taxes on
such additional amount, Executive will retain an amount equal to the total of
Executive's applicable Federal, state and local taxes arising due to the Later
Payment. In the case of any repayment of Excise Tax that Executive is required
to make to the Company pursuant to the second sentence of this Section 4.03,
Executive shall also repay to the Company the amount of any additional payment
received by Executive from the Company in respect of applicable Federal, state
and local taxes on such repaid Excise Tax, to the extent Executive is entitled
to a refund of (or has not yet paid) such Federal, state or local taxes.
ARTICLE 5
SUCCESSORS AND ASSIGNMENTS
SECTION 5.01. Successors. The Company will require any successor (whether
by reason of a Change in Control, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform the obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
SECTION 5.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die while any amount is owed but unpaid to
Executive hereunder, all such amounts, unless otherwise provided herein, shall
be paid to Executive's devisee, legatee, or other designee, or if there is no
such designee, to Executive's estate. Executive's rights hereunder shall not
otherwise be assignable.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
if to the Company, to:
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Post Office Box 20706
Atlanta, GA 30320-2534
Attn: General Counsel;
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if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 6.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts in accordance herewith, (ii) the
Company's (or any third party's) contesting the validity, enforceability, or
interpretation of the Agreement, (iii) any conflict between the parties
pertaining to this Agreement, (iv) Executive's contesting any determination by
the Internal Revenue Service pursuant to Section 4.03, or (v) Executive's
pursuing any claim under Section 6.16 hereof.
SECTION 6.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of his or her job with the Company, in accordance with
the rules of the American Arbitration Association then in effect. Executive's
election to arbitrate, as herein provided, and the decision of the arbitrators
in that proceeding, shall be binding on the Company and Executive. Judgment may
be entered on the award of the arbitrator in any court having jurisdiction. All
expenses of such arbitration, including the fees and expenses reasonably
incurred by Executive, shall be borne by the Company.
SECTION 6.04. Unfunded Agreement. Except to the extent otherwise provided
in Article 2, the obligations of the Company under this Agreement represent an
unsecured, unfunded promise to pay benefits to Executive and/or Executive's
beneficiaries, and shall not entitle Executive or such beneficiaries to a
preferential claim to any asset of the Company.
SECTION 6.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified),
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programs, policies, or practices provided by the Company, for which Executive
may qualify. Vested benefits or other amounts which Executive is otherwise
entitled to receive under any plan, policy, practice, or program of the Company
(i.e., including, but not limited to, vested benefits under the Qualified
Pension Plan), at or subsequent to the date of termination of Executive's
employment shall be payable in accordance with such plan, policy, practice, or
program except as expressly modified by this Agreement.
SECTION 6.06. Compensation Taken Into Account. Severance Benefits
provided hereunder (other than the Base Salary and Reference Incentive
Compensation Award payable pursuant to Sections 3.03(a) or 3.03(b)) shall not be
considered for purposes of determining Executive's benefits under any other plan
or program of the Company (including without limitation the Qualified Pension
Plan and the Nonqualified Pension Plans).
SECTION 6.07. Employment Status. Nothing herein contained shall
interfere with the Company's right to terminate Executive's employment with the
Company at any time, with or without Cause, subject to the Company's obligation
to provide such Severance Benefits and other amounts as may be required
hereunder.
SECTION 6.08. Mitigation. In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
shall the amount of any payment hereunder be reduced by any compensation earned
by Executive as a result of employment by another employer.
SECTION 6.09. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and shall not be affected by any circumstances including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against Executive.
SECTION 6.10. Entire Agreement. This Agreement represents the entire
agreement between the parties with respect to Executive's employment and/or
severance rights upon a Change in Control, and supersedes all prior discussions,
negotiations, and agreements concerning such rights, including, but not limited
to, any prior severance agreement made between Executive and the Company.
SECTION 6.11. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
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SECTION 6.12. Waiver of Rights. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
SECTION 6.13. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 6.14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without reference
to principles of conflict of laws.
SECTION 6.15. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
SECTION 6.16. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of the
denial. The Company shall respond in writing to a written request for review
within 90 days of receipt of such request. Neither the claim procedure set
forth in this Section 6.16 nor Executive's failure to adhere to such procedure
shall derogate from Executive's right to enforce this Agreement through legal
action, including arbitration as provided in Section 6.03.
ARTICLE 7
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in Section
4.02.
"Actuarial Firm" has the meaning accorded such term in Section
3.03(e)(iv).
"Affiliate" and "Associate" have the respective meanings accorded
to such terms in Rule 12b-2 under the Exchange Act as in effect on the
Effective Date.
"Base Salary" means, at any time, the then-regular annual rate of
pay which Executive is receiving as annual salary.
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"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," securities
pursuant to Rule 13d-3 under the Exchange Act as in effect on the
Effective Date.
"Board" has the meaning accorded such term in the second "Whereas"
clause of this Agreement.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate act or failure to
act by Executive (other than as a result of incapacity due to
physical or mental illness) which is committed in bad faith,
without reasonable belief that such action or inaction is in the
best interests of the Company, and which act or inaction is not
remedied within fifteen business days of written notice from the
Company; or
(b) Executive's conviction for committing an act of fraud,
embezzlement, theft, or any other act constituting a felony
involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote
(which cannot be delegated) of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice to Executive and an opportunity for
Executive, together with Executive's counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, Executive
is guilty of conduct set forth above in clauses (a) or (b) of this
definition and specifying the particulars thereof in detail.
"Change in Control" means, and shall be deemed to have occurred
upon, the first to occur of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 20% or more of the
combined voting power of the Voting Stock then outstanding, unless
such Person acquires Beneficial Ownership of 20% or more of the
combined voting power of the Voting Stock then outstanding solely as
a result of an acquisition of Voting Stock by the Company which, by
reducing the Voting Stock outstanding, increases the proportionate
Voting Stock beneficially owned by such Person (together with all
Affiliates and Associates of such Person) to 20% or more of the
combined voting power of the Voting Stock then
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outstanding; provided, that if a Person shall become the
Beneficial Owner of 20% or more of the combined voting power of
the Voting Stock then outstanding by reason of such Voting Stock
acquisition by the Company and shall thereafter become the
Beneficial Owner of any additional Voting Stock which causes the
proportionate voting power of Voting Stock beneficially owned by
such Person to increase to 20% or more of the combined voting
power of the Voting Stock then outstanding, such Person shall,
upon becoming the Beneficial Owner of such additional Voting
Stock, be deemed to have become the Beneficial Owner of 20% or
more of the combined voting power of the Voting Stock then
outstanding other than solely as a result of such Voting Stock
acquisition by the Company;
(b) During any period of two consecutive years (not including
any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board (and any new
Director, whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the Directors then still in office who either were
Directors at the beginning of the period or whose election or
nomination for election was so approved), cease for any reason to
constitute a majority of Directors then constituting the Board;
(c) A reorganization, merger or consolidation of the Company
is consummated, in each case, unless, immediately following such
reorganization, merger or consolidation, (i) more than 50% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners of the Voting Stock
outstanding immediately prior to such reorganization, merger or
consolidation, (ii) no Person (but excluding for this purpose any
Excluded Person and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly or
indirectly, 20% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common stock
of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
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the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting from
such reorganization, merger or consolidation were members of the
Board at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation; or
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the
Company, other than to any corporation with respect to which,
immediately following such sale or other disposition, (A) more than
50% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the
Voting Stock outstanding immediately prior to such sale or other
disposition of assets, (B) no Person (but excluding for this
purpose any Excluded Person and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, 20% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common stock
of such corporation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (C) at least a majority
of the members of the board of directors of such corporation were
members of the Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Company.
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Deferred Compensation Plan" means the Company's Executive Deferred
Compensation Plan (or any similar successor plan adopted by the Company),
as in effect immediately prior to the Change in Control.
"Deferred Compensation Trust" has the meaning accorded such term in
Section 2.01.
"Disability" means Long-Term Disability, as such term is defined in
the Disability Plan.
"Disability Plan" means the Delta Family-Care Disability and
Survivorship Plan (or any successor disability and/or survivorship plan
adopted by the Company), as in effect immediately prior to the Change in
Control (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
"Earliest Retirement Date" means the earliest date, after the date
of termination of Executive's employment, as of which Executive would be
eligible to commence receiving retirement benefits under the Qualified
Pension Plan.
"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 4.01.
"Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan
of the Company, any of its Subsidiaries or a Holding Company; or (v) any
Person organized, appointed or established by the Company, any of its
Subsidiaries or a Holding Company for or pursuant to the terms of any
plan described in clause (iv).
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
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"Good Reason" means, without Executive's express written consent,
the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with
Executive's authorities, duties, responsibilities and status as an
officer of the Company, or a reduction or alteration in the nature
or status of Executive's authorities, duties, or responsibilities,
from those in effect as of the Reference Date; other than an
insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by Executive;
(b) The Company's requiring Executive to be based at a
location in excess of 50 miles from Executive's principal job
location or office immediately prior to the Reference Date; except
for required travel on the Company's business to an extent
consistent with Executive's business travel obligations
immediately prior to the Reference Date;
(c) A reduction by the Company of Executive's Base Salary as
in effect on the Reference Date (other than pursuant to a
reduction by a uniform percentage of the salary of all full-time
domestic employees of the Company who are not subject to a
collective bargaining agreement); or a reduction in Executive's
short-term or long-term incentive compensation opportunities under
the executive incentive compensation plans of the Company for
which Executive is eligible as in effect on the Reference Date;
(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs; or
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the Company
to assume and agree to perform the Company's entire obligations
under this Agreement, as required by Article 5 herein, provided
that such successor has received at least ten days written notice
from the Company or Executive of the requirements of Article 5.
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"Gross-Up Payment" has the meaning accorded such term in Section
4.01.
"Holding Company" means an entity that becomes a holding company for
the Company or its businesses as a part of any reorganization, merger,
consolidation or other transaction, provided that the outstanding shares
of common stock of such entity and the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally
in the election of directors is, immediately after such reorganization,
merger, consolidation or other transaction, beneficially owned, directly
or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Voting
Stock outstanding immediately prior to such reorganization, merger,
consolidation or other transaction in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger,
consolidation or other transaction, of such outstanding Voting Stock.
"Initial Term" has the meaning accorded such term in Section 1.01.
"Later Payment" has the meaning accorded such term in Section 4.03.
"Medical Plans" means the DeltaFlex and the Delta Family-Care
Medical Plans (or any successor medical plans adopted by the Company), as
in effect immediately prior to the Change in Control (subject to changes
in coverage levels applicable to all employees generally covered by such
Plans).
"Nonqualified Pension Plans" means the 1991 Delta Excess Benefit
Plan and the Delta Supplemental Excess Benefit Plan (or any successor
nonqualified defined benefit retirement plans adopted by the Company).
"Person" means an individual, corporation, partnership, association,
trust or any other entity or organization.
"Qualified Pension Plan" means the Delta Family-Care Retirement Plan
(or any successor qualified defined benefit retirement plan adopted by
the Company).
"Qualifying Event" has the meaning accorded such term in Section
3.02.
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"Reference Date" means the earlier to occur of (i) a Change in
Control and (ii) the date 90 days prior to the termination of Executive's
employment.
"Reference Incentive Compensation Award" means:
(a) for purposes of Article 2 hereof, the greater of the
target annual incentive compensation award or bonus (A) for the
Company's most recently completed fiscal year prior to the Change
in Control; and (B) for the Company's fiscal year that includes
the Change in Control.
(b) for purposes of Article 3 hereof, the greater of the
target annual incentive compensation award or bonus (A) for the
Company's most recently completed fiscal year prior to the
termination of Executive's employment; and (B) for the Company's
fiscal year that includes Executive's termination of employment.
For purposes of both parts (a) and (b) of this definition, the
"target annual incentive compensation award or bonus" with respect to any
fiscal year shall be determined by multiplying the target salary
percentage applicable to Executive for such year by the Reference Salary.
"Reference Long-Term Award" means, for each performance period that
includes the date of a Change in Control under a long-term incentive plan
maintained by the Company, the greater of (i) the actual award payable to
Executive for such performance period, calculated as if such performance
period had ended on the date of the Change in Control and (ii) the target
award payable to Executive for such performance period.
"Reference Salary" means the greater of Executive's annual rate of
Base Salary as in effect (i) upon the date of termination of Executive's
employment, and (ii) immediately prior to the Change in Control.
"Severance Benefits" has the meaning accorded such term in Section
3.03.
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section
1.02.
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"Total Payments" has the meaning accorded such term in Section 4.01.
"Trust Instrument" has the meaning accorded such term in Section
2.01.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement,
to be effective as of the day and year first written above.
EXECUTIVE Delta Air Lines, Inc.
______________________ By: ____________________
Name:
Title:
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EXHIBIT 10.16
(Form of Agreement for Senior Vice Presidents)
EXECUTIVE RETENTION PROTECTION AGREEMENT
EXECUTIVE RETENTION PROTECTION AGREEMENT ("Agreement") dated as of August
1, 1997 (the "Effective Date") by and between Delta Air Lines, Inc., a Delaware
corporation (the "Company"), and [NAME] ("Executive").
WHEREAS, Executive is presently employed by the Company in a key management
capacity; and
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its stockholders that
appropriate steps be taken to reinforce and encourage the continued attention of
key management personnel, including Executive, to their assigned duties without
the distraction that may arise from personal uncertainties associated with any
pending or threatened change in control of the Company; and
WHEREAS, the Board has also determined that it is in the best interests of
the Company and its stockholders to encourage Executive's continued availability
to the Company in the event of a change in control.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration including, but not limited to, Executive's
continuing employment with the Company, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
TERM OF AGREEMENT
SECTION 1.01. Initial Term. The term of this Agreement shall commence on
the Effective Date and shall expire December 31, 1998 (the "Initial Term"),
subject to Sections 1.02 and 1.03.
SECTION 1.02. Extensions. As of each December 31 after the Effective
Date, the term of this Agreement shall automatically be extended by one year
(each such additional one-year period following the Initial Term a "Successive
Period") unless, at least sixty days prior to such December 31, (i) either party
has provided the other with written notice of such party's intent that the term
of this Agreement not be so extended or (ii) there occurs a termination of
Executive's employment with the Company.
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SECTION 1.03. Automatic Extension Upon Change in Control. In the event
that a Change in Control occurs during the Initial Term or any Successive
Period, upon the effective date of such Change in Control the term of this
Agreement shall automatically be extended for a period of 24 months from the
effective date of such Change in Control. The 24-month extension described in
this Section 1.03 shall take effect regardless of whether, before or after the
effective date of a Change in Control, Executive or the Company has given
written notice of intent not to extend the term of the Agreement pursuant to
Section 1.02 or there has occurred a termination of Executive's employment,
provided the term of the Agreement has not yet expired as of such effective
date.
ARTICLE 2
OBLIGATIONS OF COMPANY ON CHANGE IN CONTROL
SECTION 2.01. Deferred Compensation. (a) In the event that a Change in
Control occurs during the term of this Agreement, the Company shall promptly
thereafter cause to be irrevocably deposited in trust for the benefit of
Executive and his or her beneficiaries, on the terms set forth in Section
2.01(c), an amount equal to the balance as of the date of such deposit of
Executive's accounts under the Deferred Compensation Plan. (Such trust is
hereinafter referred to as the "Deferred Compensation Trust.") From and after
the date of such Change in Control, the Company shall cause to be irrevocably
deposited in the Deferred Compensation Trust any additional amounts that may be
deferred from time to time by Executive under the Deferred Compensation Plan.
Each such subsequent deposit shall be made on the date the applicable deferred
amount would otherwise have been received by Executive, but for Executive's
election to defer such receipt under the Deferred Compensation Plan.
(b) The trustee of the Deferred Compensation Trust shall be a bank that is
organized under the laws of the United States of America, has assets exceeding
$500,000,000, and may validly exercise trustee powers under Georgia state law.
All trustee's fees and other expenses of administering the Deferred Compensation
Trust shall be borne by the Company.
(c) The instrument governing the Deferred Compensation Trust (the "Trust
Instrument") shall, to the extent reasonably necessary to assure that the
Deferred Compensation Plan will continue to be treated as "unfunded" for
purposes of ERISA and the Code, provide that upon insolvency of the Company the
assets of the Trust will be subject to the claims of the Company's general
creditors. The Trust Instrument shall provide that in all other respects the
assets of the Deferred Compensation Trust will be maintained for the exclusive
benefit of Executive and his or her beneficiaries, and will otherwise be subject
to all fiduciary and other requirements of applicable state trust law. The
Trust Instrument shall
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require that the trustee invest the assets of the Trust in a manner calculated
to match as closely as the trustee deems reasonably possible the investment
elections made from time to time by Executive under the Deferred Compensation
Plan, and shall provide for payment of benefits in accordance with the terms of
Executive's applicable payment elections as in effect from time to time under
the Deferred Compensation Plan.
(d) After the date of a Change in Control, the Company shall not (other
than pursuant to Section 3.03(i) hereof) take any steps to disturb or alter
Executive's (or Executive's beneficiaries') rights to receive amounts deferred
under the Deferred Compensation Plan in accordance with such Executive's
applicable payment elections as in effect from time to time. Nothing herein or
in the Trust Instrument shall relieve the Company of its obligation to pay
benefits under the Deferred Compensation Plan in accordance with the terms of
such Plan, to the extent such benefits are not paid from the Deferred
Compensation Trust.
SECTION 2.02. Payment of Performance-Based Awards. In the event that a
Change in Control occurs during the term of this Agreement and while Executive
is employed by the Company, the Company shall promptly thereafter pay Executive
the sum of (i) the Reference Incentive Compensation Award, prorated to reflect
the portion of the fiscal year elapsed through the date of the Change in
Control, and (ii) the Reference Long-Term Award, for each performance period
that includes the date of the Change in Control under any long-term incentive
plan maintained by the Company, prorated to reflect the portion of such
performance period elapsed through the date of the Change in Control. The
amounts referred to in clauses (i) and (ii) above shall be paid in the form of
cash or shares of Company stock, in accordance with the terms of the applicable
award agreements. The payment under this Section 2.02 shall discharge all
liabilities of the Company to Executive under the Company's annual and long-term
incentive plans and programs, and under this Agreement, with respect to
performance-based incentive compensation (other than stock options and stock
appreciation rights) for the periods referred to in clauses (i) and (ii) above.
SECTION 2.03. Stock Options, Stock Appreciation Rights and
Non-Performance-Based Awards. In the event that a Change in Control occurs
during the term of this Agreement and while Executive is employed by the
Company, all outstanding stock options, stock appreciation rights, restricted
stock (if not performance-based), or other non-performance-based awards held by
Executive pursuant to the provisions of the Company's 1989 Stock Incentive Plan
or any successor plan shall become immediately vested, nonforfeitable and
exercisable as of the date of the Change in Control.
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SECTION 2.04. Gross-Up Payment. In the event that a Change in Control
occurs during the term of this Agreement, if any payment or acceleration of
vesting or exercisability under this Article 2 would result in the imposition of
excise tax under Section 4999 of the Code, or of any interest or penalties with
respect to such excise tax, then Executive shall be entitled to a Gross-Up
Payment with respect to such excise tax, interest or penalties. Such Gross-Up
Payment shall be determined in the manner set forth in Article 4 (excluding
Paragraph A and the last sentence of Paragraph B of Section 4.01), substituting
the term "Change in Control" for the term "Qualifying Event" in Section 4.02. In
addition, such Gross-Up Payment shall be subject to the provisions of Section
4.03 in the same manner as if such Gross-Up Payment had been paid under Article
4. The Company shall pay Executive the Gross-Up Payment described in this
Section 2.04 as soon as practicable following the Change in Control, but in no
event later than 30 days from such Change in Control.
ARTICLE 3
SEVERANCE BENEFITS
SECTION 3.01. Right to Severance Benefits. In the event that a Qualifying
Event occurs during the term of this Agreement, Executive shall be entitled to
receive from the Company Severance Benefits as described in Section 3.03 and the
Gross-Up Payment described in Section 4.01. The Severance Benefits described in
Sections 3.03(a), 3.03(b), 3.03(c), 3.03(d), 3.03(e), 3.03(f), 3.03(h) and
3.03(i), as well as the Gross-Up Payment, shall be paid or provided to Executive
as soon as practicable following the Qualifying Event, but in no event later
than 30 days from such Qualifying Event.
SECTION 3.02. Qualifying Event. A "Qualifying Event" means any of the
following events:
(a) The involuntary termination of Executive's employment by the Company
during the 24-month period following a Change in Control, other than (i) for
Cause, or (ii) by reason of Executive's death or Disability;
(b) Executive's voluntary termination of employment for Good Reason during
the 24-month period following a Change in Control; or
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(c) The occurrence of a Change in Control within one year after (i) the
involuntary termination of Executive's employment by the Company other than (A)
for Cause, or (B) by reason of Executive's death or Disability; or (ii)
Executive's voluntary termination of employment for Good Reason; if, in the case
of either clause (i) or (ii), the involuntary termination or actions giving rise
to the existence of Good Reason, as the case may be, were undertaken by the
Company in anticipation of a Change in Control.
SECTION 3.03. Severance Benefits. Executive shall be entitled to the
following benefits (the "Severance Benefits") under the circumstances described
in Section 3.01:
(a) The Company shall pay Executive a lump sum, in cash, equal to
Executive's earned but unpaid Base Salary and other earned but unpaid cash
entitlements for the period through and including the date of termination of
Executive's employment, including unused earned and accrued vacation pay and
unreimbursed business expenses. In addition, Executive shall be entitled to any
other benefits earned or accrued by Executive for the period through and
including the date of termination of Executive's employment under any other
employee benefit plans and arrangements maintained by the Company, in accordance
with the terms of such plans and arrangements, except as modified herein.
(b) In the case of a Qualifying Event described in Section 3.02(c), the
Company shall pay Executive the amount that would have been payable to Executive
under Section 2.02, had the Change in Control occurred as of the date of
termination of Executive's employment. The payment under this Section 3.03(b)
shall be reduced by any payments previously made to Executive under the
Company's annual and long-term incentive plans and programs, and under this
Agreement, with respect to performance-based incentive compensation (other than
stock options and stock appreciation rights) for the periods referred to in
clauses (i) and (ii) of Section 2.02.
(c) The Company shall pay Executive a lump sum, in cash, equal to two times
the sum of Executive's Reference Salary and Reference Incentive Compensation
Award.
(d) The Company shall pay Executive a lump sum, in cash, equal to the
actuarial present value of the difference between the retirement benefits
described in clauses (i) and (ii) below:
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(i) The retirement benefits described in this clause shall be
the total benefits that would be payable to Executive and his or
her spouse under the Qualified Pension Plan and the Nonqualified
Pension Plans in the form of a monthly annuity commencing as of
Executive's Earliest Retirement Date, calculated in accordance
with the terms of such plans as in effect on the date of
termination of Executive's employment (or, if greater, as in
effect immediately prior to the Change in Control), and assuming:
(A) Executive is fully vested in his or her
benefits under such plans;
(B) The number of years of Executive's credited
service for purposes of benefit accrual under such plans is
equal to two plus the number of such years of service
credited under such plans without regard to this Section
3.03(d)(i)(B);
(C) Executive's age as of the Earliest Retirement
Date is equal to Executive's actual age as of such date
plus two years, for purposes of calculating any reduction
under such plans for early commencement of benefits; and
(D) As of Executive's annuity starting date,
Executive has a spouse who meets the requirements set forth
in the Qualified Pension Plan for entitlement to automatic
joint and survivor annuity benefits.
(ii) The retirement benefits described in this clause shall
be the benefits that would be payable to Executive and his or her
spouse under the Qualified Pension Plan in the form of a monthly
annuity commencing as of Executive's Earliest Retirement Date,
calculated in accordance with the terms of such Plan, assuming
that as of Executive's annuity starting date Executive has a
spouse who meets the requirements set forth in the Qualified
Pension Plan for entitlement to automatic joint and survivor
annuity benefits.
For purposes of this Section 3.03(d), "actuarial present value" shall be
calculated using the assumptions in effect, immediately prior to the Change in
Control, for purposes of calculating actuarial equivalence under the Qualified
Pension Plan. The payment under this Section 3.03(d) shall be reduced, in the
case of a Qualifying Event described in Section 3.02(c), by the total amount of
payments
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(if any) made to Executive and his or her spouse under the Nonqualified Pension
Plans between the date of termination of Executive's employment and the date of
payment under this Section 3.03(d). The payment under this Section 3.03(d)
shall discharge all liabilities of the Company with respect to retirement
benefits of Executive under the Nonqualified Pension Plans.
(e) (i) If Executive has attained age 52 as of the date of termination
of his or her employment, Executive shall be entitled to retiree medical
and monthly survivor benefits from the Company commencing as of the date
of the Qualifying Event. Such benefits shall be provided at a level of
coverage no less generous, and at the same cost to Executive, as the
retiree medical and monthly survivor benefits for which Executive would
have been eligible upon retirement under the retiree benefits program
maintained by the Company as in effect immediately prior to the Change in
Control, provided, that if Executive has earned at least ten years of
Continuous Service under the Qualified Pension Plan as of the date of
termination of employment (taking into account the assumption set forth
in Section 3.03(d)(i)(B)), the Company shall pay Executive a lump sum, in
cash, equal to the present value (as of the date of the Qualifying Event)
of any premium imposed solely because of early retirement. The
assumption set forth in Section 3.03(d)(i)(B) shall be taken into account
in determining the level of any service-related premium to which
Executive becomes subject at any time with respect to retiree medical
benefits provided by the Company.
(ii) If, after taking into account the assumption set forth in
Section 3.03(d)(i)(C), Executive has attained age 52 as of the date of
termination of his or her employment, the Company shall, at its election,
provide to Executive either: (A) retiree medical and monthly survivor
benefits described in (i) above; or (B) a lump sum, in cash, equal to the
present value (as of the date of the Qualifying Event) of the retiree
medical and monthly survivor benefits described in (i) above.
(iii) If, after taking into account the assumption set forth in
Section 3.03(d)(i)(C), Executive has not attained age 52 as of the date
of termination of his or her employment, the Company shall pay Executive
a lump sum, in cash, equal to the present value (as of the date of the
Qualifying Event) of medical, disability and monthly survivor coverage
(as provided to active nonpilot personnel) of Executive and Executive's
eligible dependents under the Medical Plans and Disability Plan for 24
months from the date of the Qualifying Event.
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(iv) In determining present value under clauses (i), (ii) and
(iii) above, all terms applicable to Executive under the Medical Plans
and Disability Plan immediately prior to the date of the Change in
Control (including the level of premiums payable by Executive) shall be
taken into account. The amount of such present value shall be determined
by Northern Trust Retirement Consulting Inc. (the "Actuarial Firm") on
the basis of such assumptions as the Actuarial Firm determines to be
reasonable. In the event that the Actuarial Firm is serving as actuary
for the Person effecting the Change in Control or is otherwise
unavailable, Executive may appoint another nationally recognized
actuarial firm to make the determinations required hereunder (which
actuarial firm shall then be referred to as the Actuarial Firm
hereunder). The Actuarial Firm shall provide its determination and
detailed supporting calculations both to the Company and Executive within
fifteen business days of the receipt of notice from Executive that there
has been a Qualifying Event, or such earlier time as is requested by the
Company. All fees and expenses of the Actuarial Firm shall be borne
solely by the Company.
(f) The Company shall provide Executive with a fully paid-up term life
insurance policy (with premiums pre-paid for the remainder of Executive's life)
on Executive's life, providing Executive's beneficiaries with a death benefit of
$50,000. In addition, if Executive is eligible for early or normal retirement
benefits under the Qualified Pension Plan as of the date of termination of
Executive's employment, the Company shall provide Executive a fully paid-up term
life insurance policy (with premiums pre-paid for the remainder of Executive's
life) on Executive's life, providing Executive's beneficiaries with a death
benefit of two times Executive's Reference Salary. For purposes of determining
Executive's entitlement to the life insurance policy described in the preceding
sentence, the assumptions set forth in Sections 3.03(d)(i)(B) and 3.03(d)(i)(C)
shall be taken into account.
(g) Executive and Executive's spouse, for the remainder of their
respective lives, and Executive's dependent children, for so long as they are
under age 18 (or under age 23 if a full-time student), shall be entitled to free
system-wide flight privileges on Company flights to any location which the
Company serves. Such privileges shall entitle Executive, Executive's spouse and
Executive's dependent children to unlimited space available first-class tickets,
but Executive's dependent children shall not be entitled to first-class
privileges if under age 8; provided further that all of such flight privileges
shall otherwise be subject to the same conditions and restrictions as pertain
from time to time to the flight privileges generally provided by the Company to
its retirees. Nothing herein shall be deemed as a limitation upon any retiree
flight privileges for which Executive may otherwise qualify.
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(h) In the case of a Qualifying Event described in Section 3.02(c), all
outstanding stock options, stock appreciation rights, restricted stock (if not
performance-based), or other non-performance-based awards held by Executive
pursuant to the provisions of the Company's 1989 Stock Incentive Plan or any
successor plan shall become immediately vested, nonforfeitable and exercisable
as of the date of the Change in Control. In addition, in the case of such a
Qualifying Event, the Company shall, with respect to any such stock option,
stock appreciation right, restricted stock or other nonperformance-based award
forfeited by Executive on or after the date of termination of Executive's
employment (except where such forfeiture occurs solely by reason of expiration
of the term of such award), pay to Executive a lump sum, in cash, equal to the
fair market value such award would have had as of the date of the Change in
Control, taking into account the exercise price, if any, associated with such
award and treating such award as fully vested and exercisable.
(i) The Company shall pay (or cause the Deferred Compensation Trust to
pay) to Executive a lump sum, in cash, equal to the balance of Executive's
accounts under the Deferred Compensation Plan.
(j) The Company shall indemnify Executive (and Executive's legal
representatives or other successors) to the fullest extent permitted by the
Certificate of Incorporation and By-Laws of the Company, as in effect at such
time or on the Effective Date, or by the terms of any indemnification agreement
between the Company and Executive, whichever affords or afforded greater
protection to Executive, and Executive shall be entitled to the protection of
any insurance policies the Company may elect to maintain generally for the
benefit of its directors and officers (and to the extent the Company maintains
such an insurance policy or policies, Executive shall be covered by such policy
or policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company officer or director), against all costs,
charges and expenses whatsoever incurred or sustained by Executive or
Executive's legal representatives at the time such costs, charges and expenses
are incurred or sustained, in connection with any action, suit or proceeding to
which Executive (or Executive's legal representatives or other successors) may
be made a party by reason of Executive's being or having been a director,
officer or employee of the Company, or any Subsidiary or Executive's serving or
having served any other enterprise as a director, officer, employee or fiduciary
at the request of the Company.
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ARTICLE 4
CERTAIN TAX PAYMENTS
SECTION 4.01. Gross-Up Payment. The Company shall pay to Executive an
additional lump sum payment (the "Gross-Up Payment"), in cash, equal to the sum
of the amounts described in Paragraphs A and B (if any), below:
A. Executive shall be entitled under this paragraph to the sum of
(i) the present value of all of Executive's applicable Federal, state and
local taxes arising due to payments or coverage provided under Section
3.03(e), and (ii) an additional amount such that after payment by
Executive of all of Executive's applicable Federal, state and local taxes
on such additional amount, Executive will retain an amount equal to the
total of Executive's applicable Federal, state and local taxes arising
due to the payment required pursuant to clause (i) above. For purposes
of clause (i) above, present value shall be determined using the
appropriate "applicable federal rate" promulgated by the Treasury
Department under Code Section 1274(d) for the month in which the Gross-Up
Payment is made, assuming that all taxes will be paid on the due date
therefor (without regard to extensions).
B. If any portion of the Severance Benefits or any other payment
under this Agreement, or under any other agreement with, or plan of the
Company, including but not limited to stock options and other long-term
incentives (in the aggregate "Total Payments") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Executive shall be entitled under this
paragraph to an additional amount such that after payment by Executive of
all of Executive's applicable Federal, state and local taxes, including
any Excise Tax, imposed upon such additional amount, Executive will
retain an amount equal to the Excise Tax imposed on the Total Payments.
The amount determined under this Paragraph B upon the occurrence of a
Qualifying Event shall be reduced by the amount of any Gross-Up Payment
previously paid to Executive under Section 2.04.
For purposes of Paragraphs A and B above, Executive's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt of
the Gross-Up Payment.
SECTION 4.02. Determinations. All determinations required to be made
under this Article 4, including the amount of the Gross-Up Payment, whether a
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payment is required under Paragraph B of Section 4.01, and the assumptions to be
used in determining the Gross-Up Payment, shall be made by Arthur Andersen LLP
(the "Accounting Firm") which shall provide detailed supporting calculations
both to the Company and Executive within twenty business days of the receipt of
notice from Executive that there has been a Qualifying Event, or such earlier
time as is requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the Person effecting the Change in Control
or is otherwise unavailable, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company.
SECTION 4.03. Subsequent Redeterminations. Executive agrees (unless
requested otherwise by the Company) to use reasonable efforts to contest in good
faith any subsequent determination by the Internal Revenue Service that
Executive owes an amount of Excise Tax greater than the amount determined
pursuant to Section 4.02; provided, that Executive shall be entitled to
reimbursement by the Company of all fees and expenses reasonably incurred by
Executive in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Executive owes an
amount of Excise Tax that is either greater or less than the amount previously
taken into account and paid under this Article 4, the Company shall promptly pay
to Executive, or Executive shall promptly repay to the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that the
Company is required to make to Executive pursuant to the preceding sentence (a
"Later Payment"), the Company shall also pay to Executive an additional amount
such that after payment by Executive of all of Executive's applicable Federal,
state and local taxes on such additional amount, Executive will retain an amount
equal to the total of Executive's applicable Federal, state and local taxes
arising due to the Later Payment. In the case of any repayment of Excise Tax
that Executive is required to make to the Company pursuant to the second
sentence of this Section 4.03, Executive shall also repay to the Company the
amount of any additional payment received by Executive from the Company in
respect of applicable Federal, state and local taxes on such repaid Excise Tax,
to the extent Executive is entitled to a refund of (or has not yet paid) such
Federal, state or local taxes.
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ARTICLE 5
SUCCESSORS AND ASSIGNMENTS
SECTION 5.01 Successors. The Company will require any successor (whether
by reason of a Change in Control, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform the obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
SECTION 5.02. Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die while any amount is owed but unpaid to
Executive hereunder, all such amounts, unless otherwise provided herein, shall
be paid to Executive's devisee, legatee, or other designee, or if there is no
such designee, to Executive's estate. Executive's rights hereunder shall not
otherwise be assignable.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01 Notices. Any notice required to be delivered hereunder
shall be in writing and shall be addressed
if to the Company, to:
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
Post Office Box 20706
Atlanta, GA 30320-2534
Attn: General Counsel;
if to Executive, to Executive's last known address as reflected on the
books and records of the Company
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
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SECTION 6.02. Legal Fees and Expenses. The Company shall pay all legal
fees, costs of litigation, prejudgment interest, and other expenses which are
reasonably incurred by Executive as a result of (i) the Company's refusal to
provide Severance Benefits or other amounts in accordance herewith, (ii) the
Company's (or any third party's) contesting the validity, enforceability, or
interpretation of the Agreement, (iii) any conflict between the parties
pertaining to this Agreement, (iv) Executive's contesting any determination by
the Internal Revenue Service pursuant to Section 4.03, or (v) Executive's
pursuing any claim under Section 6.16 hereof.
SECTION 6.03. Arbitration. Executive shall have the right and option to
elect (in lieu of litigation) to have any dispute or controversy arising under
or in connection with this Agreement settled by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by Executive within 50
miles from the location of his or her job with the Company, in accordance with
the rules of the American Arbitration Association then in effect. Executive's
election to arbitrate, as herein provided, and the decision of the arbitrators
in that proceeding, shall be binding on the Company and Executive. Judgment may
be entered on the award of the arbitrator in any court having jurisdiction. All
expenses of such arbitration, including the fees and expenses reasonably
incurred by Executive, shall be borne by the Company.
SECTION 6.04. Unfunded Agreement. Except to the extent otherwise provided
in Article 2, the obligations of the Company under this Agreement represent an
unsecured, unfunded promise to pay benefits to Executive and/or Executive's
beneficiaries, and shall not entitle Executive or such beneficiaries to a
preferential claim to any asset of the Company.
SECTION 6.05. Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify. Vested benefits or other amounts which Executive
is otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under the
Qualified Pension Plan), at or subsequent to the date of termination of
Executive's employment shall be payable in accordance with such plan, policy,
practice, or program except as expressly modified by this Agreement.
SECTION 6.06. Compensation Taken Into Account. Severance Benefits
provided hereunder (other than the Base Salary and Reference Incentive
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Compensation Award payable pursuant to Sections 3.03(a) or 3.03(b)) shall not be
considered for purposes of determining Executive's benefits under any other plan
or program of the Company (including without limitation the Qualified Pension
Plan and the Nonqualified Pension Plans).
SECTION 6.07. Employment Status. Nothing herein contained shall interfere
with the Company's right to terminate Executive's employment with the Company at
any time, with or without Cause, subject to the Company's obligation to provide
such Severance Benefits and other amounts as may be required hereunder.
SECTION 6.08 Mitigation. In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, nor
shall the amount of any payment hereunder be reduced by any compensation earned
by Executive as a result of employment by another employer.
SECTION 6.09. No Set-Off. The Company's obligations to make all payments
and honor all commitments under this Agreement shall be absolute and
unconditional and shall not be affected by any circumstances including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against Executive.
SECTION 6.10. Entire Agreement. This Agreement represents the entire
agreement between the parties with respect to Executive's employment and/or
severance rights upon a Change in Control, and supersedes all prior discussions,
negotiations, and agreements concerning such rights, including, but not limited
to, any prior severance agreement made between Executive and the Company.
SECTION 6.11. Tax Withholding. Notwithstanding anything in this
Agreement to the contrary, the Company shall withhold from any amounts payable
under this Agreement all federal, state, city, or other taxes as are legally
required to be withheld.
SECTION 6.12. Waiver of Rights. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
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SECTION 6.13. Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
SECTION 6.14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without reference
to principles of conflict of laws.
SECTION 6.15. Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were on the same instrument.
SECTION 6.16. Claim Review Procedure. If Executive is denied benefits
under this Agreement, Executive may request, in writing, a review of the denial
by the Company or its designee within 60 days of receiving written notice of
the denial. The Company shall respond in writing to a written request for
review within 90 days of receipt of such request. Neither the claim procedure
set forth in this Section 6.16 nor Executive's failure to adhere to such
procedure shall derogate from Executive's right to enforce this Agreement
through legal action, including arbitration as provided in Section 6.03.
ARTICLE 7
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accounting Firm" has the meaning accorded such term in
Section 4.02.
"Actuarial Firm" has the meaning accorded such term in
Section 3.03(e)(iv).
"Affiliate" and "Associate" have the respective meanings accorded
to such terms in Rule 12b-2 under the Exchange Act as in effect on the
Effective Date.
"Base Salary" means, at any time, the then-regular annual rate of
pay which Executive is receiving as annual salary.
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"Beneficial Ownership." A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," securities pursuant
to Rule 13d-3 under the Exchange Act as in effect on the Effective Date.
"Board" has the meaning accorded such term in the second "Whereas"
clause of this Agreement.
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate act or failure to
act by Executive (other than as a result of incapacity due to
physical or mental illness) which is committed in bad faith,
without reasonable belief that such action or inaction is in the
best interests of the Company, and which act or inaction is not
remedied within fifteen business days of written notice from the
Company; or
(b) Executive's conviction for committing an act of fraud,
embezzlement, theft, or any other act constituting a felony
involving moral turpitude.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote
(which cannot be delegated) of not less than three-quarters of the entire
membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice to Executive and an opportunity for
Executive, together with Executive's counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, Executive
is guilty of conduct set forth above in clauses (a) or (b) of this
definition and specifying the particulars thereof in detail.
"Change in Control" means, and shall be deemed to have occurred
upon, the first to occur of any of the following events:
(a) Any Person (other than an Excluded Person) acquires,
together with all Affiliates and Associates of such Person,
Beneficial Ownership of securities representing 20% or more of
the combined voting power of the Voting Stock then outstanding,
unless such Person acquires Beneficial Ownership of 20% or more
of the combined voting power of the Voting Stock then
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outstanding solely as a result of an acquisition of Voting Stock
by the Company which, by reducing the Voting Stock outstanding,
increases the proportionate Voting Stock beneficially owned by
such Person (together with all Affiliates and Associates of such
Person) to 20% or more of the combined voting power of the Voting
Stock then outstanding; provided, that if a Person shall become
the Beneficial Owner of 20% or more of the combined voting power
of the Voting Stock then outstanding by reason of such Voting
Stock acquisition by the Company and shall thereafter become the
Beneficial Owner of any additional Voting Stock which causes the
proportionate voting power of Voting Stock beneficially owned by
such Person to increase to 20% or more of the combined voting
power of the Voting Stock then outstanding, such Person shall,
upon becoming the Beneficial Owner of such additional Voting
Stock, be deemed to have become the Beneficial Owner of 20% or
more of the combined voting power of the Voting Stock then
outstanding other than solely as a result of such Voting Stock
acquisition by the Company;
(b) During any period of two consecutive years (not
including any period prior to the Effective Date), individuals
who at the beginning of such period constitute the Board (and any
new Director, whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of
at least two-thirds of the Directors then still in office who
either were Directors at the beginning of the period or whose
election or nomination for election was so approved), cease for
any reason to constitute a majority of Directors then
constituting the Board;
(c) A reorganization, merger or consolidation of the
Company is consummated, in each case, unless, immediately
following such reorganization, merger or consolidation, (i) more
than 50% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners of the
Voting Stock outstanding immediately prior to such
reorganization, merger or consolidation, (ii) no Person (but
excluding for this purpose any Excluded Person and any Person
beneficially owning, immediately
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prior to such reorganization, merger or consolidation, directly
or indirectly, 20% or more of the voting power of the outstanding
Voting Stock) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Board at the time of the
execution of the initial agreement providing for such
reorganization, merger or consolidation; or
(d) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of
the Company, other than to any corporation with respect to which,
immediately following such sale or other disposition, (A) more
than 50% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled
to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the Voting Stock outstanding immediately
prior to such sale or other disposition of assets, (B) no Person
(but excluding for this purpose any Excluded Person and any
Person beneficially owning, immediately prior to such sale or
other disposition, directly or indirectly, 20% or more of the
voting power of the outstanding Voting Stock) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of such corporation or the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board
of directors of such corporation were members of the Board at the
time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of
the Company.
Notwithstanding the foregoing, in no event shall a "Change in Control"
be deemed to have occurred (i) as a result of the formation of a Holding
Company, or (ii) with respect to Executive, if Executive is part of a
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"group," within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the Effective Date, which consummates the Change in Control
transaction. In addition, for purposes of the definition of "Change in
Control" a Person engaged in business as an underwriter of securities
shall not be deemed to be the "Beneficial Owner" of, or to "beneficially
own," any securities acquired through such Person's participation in
good faith in a firm commitment underwriting until the expiration of
forty days after the date of such acquisition.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Deferred Compensation Plan" means the Company's Executive Deferred
Compensation Plan (or any similar successor plan adopted by the
Company), as in effect immediately prior to the Change in Control.
"Deferred Compensation Trust" has the meaning accorded such term
in Section 2.01.
"Disability" means Long-Term Disability, as such term is defined in
the Disability Plan.
"Disability Plan" means the Delta Family-Care Disability and
Survivorship Plan (or any successor disability and/or survivorship plan
adopted by the Company), as in effect immediately prior to the Change in
Control (subject to changes in coverage levels applicable to all
employees generally covered by such Plan).
"Earliest Retirement Date" means the earliest date, after the date
of termination of Executive's employment, as of which Executive would be
eligible to commence receiving retirement benefits under the Qualified
Pension Plan.
"Effective Date" has the meaning accorded such term in the
introductory paragraph of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excise Tax" has the meaning accorded such term in Section 4.01.
"Excluded Person" means (i) the Company; (ii) any of the Company's
Subsidiaries; (iii) any Holding Company; (iv) any employee benefit plan
of the Company, any of its Subsidiaries or a Holding Company; or (v) any
Person organized, appointed or established by the Company, any of its
Subsidiaries or a Holding Company for or pursuant to the terms of any
plan described in clause (iv).
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Good Reason" means, without Executive's express written consent,
the occurrence of any one or more of the following:
(a) The assignment to Executive of duties inconsistent with
Executive's authorities, duties, responsibilities and status as an
officer of the Company, or a reduction or alteration in the nature
or status of Executive's authorities, duties, or responsibilities,
from those in effect as of the Reference Date; other than an
insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by Executive;
(b) The Company's requiring Executive to be based at a
location in excess of 50 miles from Executive's principal job
location or office immediately prior to the Reference Date; except
for required travel on the Company's business to an extent
consistent with Executive's business travel obligations
immediately prior to the Reference Date;
(c) A reduction by the Company of Executive's Base Salary as
in effect on the Reference Date (other than pursuant to a
reduction by a uniform percentage of the salary of all full-time
domestic employees of the Company who are not subject to a
collective bargaining agreement); or a reduction in Executive's
short-term or long-term incentive compensation opportunities under
the executive incentive compensation plans of the Company for
which Executive is eligible as in effect on the Reference Date;
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(d) The failure by the Company to keep in effect
compensation, retirement, health and welfare benefits, or
perquisite programs under which Executive receives benefits
substantially similar, in the aggregate, to the benefits under
such programs as exist immediately prior to the Reference Date
(other than pursuant to an equivalent reduction in such benefits
of all full-time domestic employees of the Company who are not
subject to a collective bargaining agreement); or the failure of
the Company to meet the funding requirements, if any, of any of
such programs; or
(e) Any material breach by the Company of its obligations
under this Agreement or any failure of a successor of the Company
to assume and agree to perform the Company's entire obligations
under this Agreement, as required by Article 5 herein, provided
that such successor has received at least ten days written notice
from the Company or Executive of the requirements of Article 5.
"Gross-Up Payment" has the meaning accorded such term in Section
4.01.
"Holding Company" means an entity that becomes a holding company for
the Company or its businesses as a part of any reorganization, merger,
consolidation or other transaction, provided that the outstanding shares
of common stock of such entity and the combined voting power of the then
outstanding voting securities of such entity entitled to vote generally
in the election of directors is, immediately after such reorganization,
merger, consolidation or other transaction, beneficially owned, directly
or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Voting
Stock outstanding immediately prior to such reorganization, merger,
consolidation or other transaction in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger,
consolidation or other transaction, of such outstanding Voting Stock.
"Initial Term" has the meaning accorded such term in Section 1.01.
"Later Payment" has the meaning accorded such term in
Section 4.03.
"Medical Plans" means the DeltaFlex and the Delta Family-Care
Medical Plans (or any successor medical plans adopted by the Company),
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as in effect immediately prior to the Change in Control (subject to
changes in coverage levels applicable to all employees generally covered
by such Plans).
"Nonqualified Pension Plans" means the 1991 Delta Excess Benefit Plan and
the Delta Supplemental Excess Benefit Plan (or any successor nonqualified
defined benefit retirement plans adopted by the Company).
"Person" means an individual, corporation, partnership, association,
trust or any other entity or organization.
"Qualified Pension Plan" means the Delta Family-Care Retirement Plan
(or any successor qualified defined benefit retirement plan adopted by
the Company).
"Qualifying Event" has the meaning accorded such term in Section
3.02.
"Reference Date" means the earlier to occur of (i) a Change in
Control and (ii) the date 90 days prior to the termination of Executive's
employment.
"Reference Incentive Compensation Award" means:
(a) for purposes of Article 2 hereof, the greater of the
target annual incentive compensation award or bonus (A) for the
Company's most recently completed fiscal year prior to the Change
in Control; and (B) for the Company's fiscal year that includes
the Change in Control.
(b) for purposes of Article 3 hereof, the greater of the
target annual incentive compensation award or bonus (A) for the
Company's most recently completed fiscal year prior to the
termination of Executive's employment; and (B) for the Company's
fiscal year that includes Executive's termination of employment.
For purposes of both parts (a) and (b) of this definition, the
"target annual incentive compensation award or bonus" with respect to any
fiscal year shall be determined by multiplying the target salary
percentage applicable to Executive for such year by the Reference Salary.
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"Reference Long-Term Award" means, for each performance period that
includes the date of a Change in Control under a long-term incentive plan
maintained by the Company, the greater of (i) the actual award payable to
Executive for such performance period, calculated as if such performance
period had ended on the date of the Change in Control and (ii) the target
award payable to Executive for such performance period.
"Reference Salary" means the greater of Executive's annual rate of
Base Salary as in effect (i) upon the date of termination of Executive's
employment, and (ii) immediately prior to the Change in Control.
"Severance Benefits" has the meaning accorded such term in Section
3.03.
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successive Period" has the meaning accorded such term in Section
1.02.
"Total Payments" has the meaning accorded such term in Section
4.01.
"Trust Instrument" has the meaning accorded such term in Section
2.01.
"Voting Stock" means securities of the Company entitled to vote
generally in the election of members of the Board.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
EXECUTIVE Delta Air Lines, Inc.
By:
------------------------------ ----------------------------------
Name:
Title:
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